Marijuana

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro. Remember: people care, help is available. If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this: when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report. Think of it as helping another human being. As I blogged last March

“In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel. Some lawyers wonder whether there is a duty to report substance abuse and mental health issues. Maybe. Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved. Some of these might sound familiar:

It’s not my business.

I don’t know for sure, could’ve been she was having a bad day.

It helps my client that he isn’t doing his job.

The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. In 2016, a the Supreme Court adopted a Comment to the rule. The Comment makes it clear that lawyers may:

Vincenzo Leoncavallo was an attorney and judge in Italy. In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival. The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910. It was then, 108 years ago, that the first public radio broadcast took place. The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son. It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

“Only if it’s reasonable to believe that you can provide competent & diligent representation to each, it’s not prohibited by law (whatever that means), they aren’t adversaries in the same case, and each provides informed consent, confirmed in writing.”

This week, the Department of Justice made an announcement that, arguably, has ethical implications for Vermont attorneys. The announcement concerned:

A. Immigration

B. Privacy

C. Marijuana. Vermont lawyers do not violate V.R.Pr.C. 1.2(b) by providing advice on marijuana-related matters that are legal under Vermont state law. For more, see this post. Whether providing such advice violates federal law is a question beyond the scope of the Rules of Professional Conduct.

D. Electronically Stored Information

Question 5

Even if you’ve never heard of Ted Buckland, Dr. Kelso, The Gooch, or New Sacred Heart Hospital, if you know a of clothing that’s common in a hospital, you can make an educated guess at this question.

Ted Buckland is in-house counsel at New Sacred Heart Hospital. He’s also one of the most pathetic and least competent lawyers in TV history. Among other things,

Ted lived at home with his mother well into his adult life;

Although a lawyer, Ted’s mother thinks that he is a doctor;

He failed the bar exam 5 times, before passing it in Alaska;

Ted’s low self-esteem & chronic anxiety often leave him unable to provide Dr. Kelso, the hospital’s Chief of Medicine, with any legal advice, not to mention competent legal advice;

Once, a patient slipped & fell at the hospital. Ted is so incompetent that his immediate response was to blame the fall on the patient’s slippers . . . not realizing that the patient was wearing hospital-supplied booties.

Ted is in a band. It’s name is The Worthless Peons.

The Gooch broke Ted’s heart.

In one episode, Ted warned the hospital’s staff:

“Finally, doctors, if there is a mistake, don’t admit it to the patient. Of course, if the patient is deceased – and you’re sure – you can feel free to tell him or her… anything.”

The reason Ted’s mother thinks that he is doctor is because, once, he came home from work wearing a type of clothing that’s common in a hospital. He told her he’d saved someone’s life that day.

Name the show on which Ted Buckland is in-house counsel at New Sacred Heart Hospital.

The Vermont Supreme Court amended Rule 1.2(d) of the Vermont Rules of Professional Conduct, adding Comment 14. The order amending the rule includes the text of Rule 1.2(d), the new Comment, and Reporter’s Notes. You can view the order HERE.

My post on the ethical issues associated with marijuana is HERE. A quick summary: the key ethical concern is whether lawyers violate Rule 1.2(d) by providing clients with advice and assistance on a matter that is legal under state law but illegal under federal law.

Many lawyers are too quick to write off the issue as not impacting their practicing or clients. They say: “Mike, ‘no’, I don’t need to worry about the ethics of marijuana. It could never impact my practice.” Oh really?

For example, labor lawyers – imagine this:

Employee, a quadriplegic, has a prescription for medical marijuana;

he uses it at home, off the clock, to treat debilitating muscle spasms;

state law prohibits employers from firing employees for engaging in lawful activities off the job;

during a routine drug test, Employee tested positive for cannabis;

Employer immediately terminated Employee

Employee goes to Lawyer for advice. Employer goes to Attorney for advice. Put yourself in the shoes of either, what say ye?

Here’s what the Colorado Supreme Court said. If you’d rather not the read the entire opinion, the ABA Journal summarized it HERE. In short, the Colorado court concluded that because marijuana is illegal under federal law, its use isn’t lawful and is a valid basis for termination.

The ABA article raises several other scenarios in which lawyers find themselves struggling to give competent advice on issues related to marijuana, and confused as to how to do so without violating the ethics rules. Here are a few more:

does an attorney assist a client to violate federal law by representing the client in connection with an application for a state-issued license/permit to operate a medical marijuana dispensary?

if the client receives a permit, does a real estate attorney assist the client to violate federal law by representing the client in connection with purchase of land upon which to build the dispensary? what about the attorney who represents the dispensary before the local zoning board?

you represent a bank. are you familiar with the Department of Treasury’s Financial Crime Reporting Network’s memorandum that provides guidance on the Bank Secrecy Act and expectations regarding marijuana related businesses?

A criminal defense client’s conditions of release prohibit her from violating the law. She has a prescription for medical marijuana. She asks for advice as to whether she will violate her conditions by using the medical marijuana.

Family law practitioners: client asks you to file a motion to modify a parent child contact order. Client’s ex has a prescription for medical marijuana, but Client doesn’t want “the kids around marijuana because it’s illegal!” Have you thought about what advice you’d give in this situation?

So, yes Virginia, this is an issue that might impact you.

I have collected a power point presentation that refers to ethics opinions issued in several other states. If you would me to send it to you, please let me know. Also, we will discuss these issues on January 15 at the YLD Thaw.

Tomorrow, Thursday, I will try to post an early, holiday-themed version of Five For Friday.